State ex rel. A.R.F. v. State

484 P.3d 1185

STATE of Utah, IN the INTEREST OF A.R.F. and M.J., Persons Under Eighteen Years of Age.

A.M., Appellant,

v.State of Utah, Appellee.

No. 20200795-CA

Court of Appeals of Utah.

Filed March 18, 2021

Angilee K. Dakic, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee

Martha Pierce, Salt Lake City, Guardian ad Litem

Before Judges Gregory K. Orme, Jill M. Pohlman, and Ryan M. Harris.

Per Curiam Opinion

PER CURIAM:

¶1 A.M. (Mother) appeals the juvenile court order terminating her parental rights, raising three challenges, two of which invoke the Indian Child Welfare Act (ICWA). First, she asserts that the juvenile court erred in determining that there was good cause to deviate from the child placement preferences established by ICWA. See 25 U.S.C. § 1915(b). Second, she alleges that the State, through the Division of Child and Family Services (DCFS), failed to make "active efforts" to assist her with "remedial services and rehabilitative programs designed to prevent the breakup of the Indian family." See id. § 1912(d). Third, she challenges the juvenile court's determination that terminating her parental rights was in the children's best interests, and asserts that the court did not adequately consider feasible alternatives to termination and therefore it was not strictly necessary. We reject Mother's arguments and affirm.

BACKGROUND

¶2 In May 2019, after Mother was arrested, DCFS removed teen A.R.F. and toddler M.J. from Mother's custody and initiated a child welfare case. The children were taken into State custody, and eventually placed by DCFS in a local non-Indian foster home. The juvenile court put in place a Child and Family Plan setting forth steps Mother needed to take in order to achieve reunification with the children.¹ This Plan required Mother to, among other things, submit to drug testing, attend drug treatment programs, and maintain gainful employment.

¶3 Mother initially told DCFS that she was not Native American and did not want ICWA procedures applied in her case. Later, however, she said that she believed she might be a member of the Cherokee Nation. Accordingly, the juvenile court set the matter for an ICWA Pretrial Hearing to be held on June 19, 2019. On May 21, as required by the ICWA, DCFS sent notice of the upcoming hearing, along with a copy of the Continued Verified Petition for Custody and the Shelter/Pretrial Order, via registered and certified mail to: (1) the Eastern Band of Cherokee Indians, (2) the Cherokee Nation, and (3) the United Keetoowah Band of Cherokee Indians. See 25 U.S.C. § 1912(a) (setting forth the ICWA notice requirements). On May 23, each of these tribal entities was served with, and signed for, the Notice, Petition, and Shelter/Pretrial Order. Only the Eastern Band of Cherokee Indians responded, advising that Mother and the children were not registered members or eligible to register as members of their tribe.

¶4 After the ICWA Pretrial Hearing, and based on the information that it had at the time, the juvenile court found that the children and Mother were "not members of, and [were] not eligible for enrollment or membership in, a federally recognized Native American Tribe for purposes of [the ICWA]." The court thus concluded that ICWA did not apply.

¶5 Over the next three months, Mother provided no additional information regarding any tribal enrollment to DCFS or the juvenile court. But on September 10, 2019, Mother sent the juvenile court a screenshot of a tribal registration card indicating that she was an enrolled member of the Cherokee Nation. And about a week later, the Cherokee Nation responded to the ICWA notice that DCFS had sent in May and indicated that the children and Mother were "members of, or [were] eligible for enrollment or membership in, the Cherokee Nation for purposes of [the ICWA]." The letter further indicated that a caseworker assigned by the Cherokee Nation would contact DCFS. Thereafter, Mother's DCFS caseworker attempted to contact the assigned caseworker, Mr. Tad Teehee² (Tribal Caseworker), to see if he would be participating in the next review hearing, set for October 30, but he did not respond before that hearing.

¶6 At the October 30 hearing, the juvenile court specifically found that "[t]he children and their mother are members of, or eligible for enrollment or membership in, the Cherokee Nation" for purposes of ICWA. The court also found specific needs for continued DCFS custody, additional ICWA placement efforts, and "active efforts" under ICWA to support Mother in rehabilitation and reunification. The court noted that the children were "doing very well" in their DCFS placement in a local non-Indian foster home, which was intended to facilitate visitation with Mother. To implement the ICWA requirements, the court looked for potential placements with relatives or tribal members but found that none "could provide a safe, stable, and otherwise appropriate environment for the children." DCFS stated it would seek input from the Cherokee Nation regarding possible placement with an Indian family, in an effort to meet the priority placement preferences mandated by 25 U.S.C. section 1915(b). As to Mother, the court found that she failed to cooperate with DCFS or treatment providers to meet the court-ordered reunification goals, and that she "continued to show a complete lack of accountability for her actions."

¶7 A few weeks later, DCFS contacted Tribal Caseworker and informed him that the children were not in an ICWA-preferred placement. Tribal Caseworker advised that the Cherokee Nation was not asking for the children to be placed elsewhere because it was unaware of any Cherokee homes available to take the children, and because the children had been placed together in a stable, local foster home that facilitated the services required in the Child and Family Plan. After reviewing the record, Tribal Caseworker participated in a November 2019 family team meeting and spoke with A.R.F. and Mother. Tribal Caseworker advised Mother and the family team that he did not believe the children would be safe in Mother's home or care, so he supported continuing both children in DCFS custody and in their foster placement. Thereafter, Tribal Caseworker continued to regularly communicate with both DCFS and Mother, and also filed a formal Notice of Intervention on behalf of the Cherokee Nation, pursuant to 25 U.S.C. section 1911(c), signaling his intent to participate in the proceedings and make recommendations as both the ICWA caseworker and the qualified expert for the Cherokee Nation.

¶8 In January 2020, the juvenile court held another review hearing. It found that Mother was noncompliant with the reunification requirements outlined in the Child and Family Plan because she had failed to adhere to the drug testing schedule, find stable employment, or engage in family therapy with A.R.F. DCFS, the Guardian ad Litem, and Tribal Caseworker all recommended that it was in the children's best interests to terminate Mother's reunification services and change the permanency goal to adoption because:

Mother had failed to cooperate with [DCFS] and treatment providers' recommendations for treatment; she refused to acknowledge any real wrongdoing on her part or show any accountability for her actions; she failed to demonstrate substantial compliance with her Child and Family Plan requirements and the Court's Orders or that she had made any improvement or progress toward remedying the circumstances that led to the children's removal from her custody; and the children had made notable improvements since being in a stable home environment with appropriate and consistent parenting by the [foster parents].

Tribal Caseworker again indicated that there were no Cherokee foster homes available to take the children, but he advised the court that the Cherokee Nation supported the children's continued placement with the foster family, because the children were together, happy, and well-settled in their foster home, they were in the least restrictive placement possible, and A.R.F. wanted to be adopted by the foster family. Tribal Caseworker further stated that this constituted "good cause" to deviate from the ICWA-preferred placement guidelines in this case, and opined that it was in the children's best interests to allow them to remain in their foster placement. See id. § 1915(b) (stating that the ICWA's foster placement preferences shall be applied, "in the absence of good cause to the contrary").

¶9 Based on the evidence before it, the juvenile court first found that DCFS had made "active efforts" to identify family or other tribal members to serve as a placement for the children, but none were identified that were "fit to assume physical custody" and could also "provide a safe, stable, and otherwise appropriate environment for the children." Thus, the court concluded that there was "good cause" to deviate from the ICWA placement preferences. See id. Additionally, the court made extensive findings of fact and determined, by clear and convincing evidence, that custody of the children by any of their parents was "likely to result in serious emotional or physical damage" to the children within the meaning of the ICWA. See id. § 1912(e) (directing that no foster care placement may be ordered "in the absence of a determination supported by clear and convincing evidence" that "continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child"). Consequently, the juvenile court terminated reunification services and scheduled a permanency hearing for February.

¶10 At the permanency hearing, the juvenile court heard from the parties, received evidence, and took judicial notice of the findings from the January review hearing. The only evidence Mother presented was a forged document she claimed was from her doctor; she provided nothing to overcome the court's prior...